Snowden and a muzzled free press

By Frank Snepp, Special to CNN.com

Updated 1602 GMT (2302 HKT) July 3, 2013

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Notable leakers and whistle-blowers – Former intelligence worker Edward Snowden revealed himself as the source of documents outlining a massive effort by the NSA to track cell phone calls and monitor the e-mail and Internet traffic of virtually all Americans. He says he just wanted the public to know what the government was doing. "Even if you're not doing anything wrong, you're being watched and recorded," he said. Snowden has been granted temporary asylum in Russia after initially fleeing to Hong Kong. He has been charged with three felony counts, including violations of the U.S. Espionage Act, over the leaks.

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Notable leakers and whistle-blowers – Military analyst Daniel Ellsberg leaked the 7,000-page Pentagon Papers in 1971. The top-secret documents revealed that senior American leaders, including three presidents, knew the Vietnam War was an unwinnable, tragic quagmire. Further, they showed that the government had lied to Congress and the public about the progress of the war. Ellsberg surrendered to authorities and was charged as a spy. During his trial, the court learned that President Richard Nixon's administration had embarked on a campaign to discredit Ellsberg, illegally wiretapping him and breaking into his psychiatrist's office. All charges against him were dropped. Since then he has lived a relatively quiet life as a respected author and lecturer.

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Notable leakers and whistle-blowers – Starting in 1932, the U.S. Public Health Service studied untreated syphilis in black men who thought they were getting free health care. The patients weren't told of their affliction or sufficiently treated. Peter Buxtun, who worked for the Public Health Service, relayed information about the Tuskegee syphilis experiment to a reporter in 1972, which halted the 40-year study. His testimony at congressional hearings led to an overhaul of the Health, Education and Welfare rules concerning work with human subjects. A class-action lawsuit was settled out-of-court for $10 million, with the U.S. government promising free medical care to survivors and their families. Here, participants talk with a study coordinator.

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Notable leakers and whistle-blowers – In 2005, retired deputy FBI director Mark Felt revealed himself to be the whistle-blower "Deep Throat" in the Watergate scandal. He anonymously assisted Washington Post reporters Carl Bernstein and Bob Woodward with many of their stories about the Nixon administration's cover-up after the June 1972 break-in at the Democratic National Committee headquarters. The stories sparked a congressional investigation that eventually led to President Nixon's resignation in 1974. The Post won a Pulitzer Prize for its coverage. Felt was convicted on unrelated conspiracy charges in 1980 and eventually pardoned by President Ronald Reagan before slipping into obscurity for the next quarter-century. He died in 2008 at age 95.

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Notable leakers and whistle-blowers – Mordechai Vanunu, who worked as a technician at Israel's nuclear research facility, leaked information to a British newspaper and led nuclear arms analysts to conclude that Israel possessed a stockpile of nuclear weapons. Israel has neither confirmed nor denied its weapons program. An Israeli court convicted Vanunu in 1986 after Israeli intelligence agents captured him in Italy. He was sentenced to 18 years in prison. Since his release in 2004, he has been arrested on a number of occasions for violating terms of his parole.

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Notable leakers and whistle-blowers – President Ronald Reagan addresses the media in 1987, months after the disclosure of the Iran-Contra affair. A secret operation carried out by an American military officer used proceeds from weapons sales to Iran to fund the anti-communist Contras in Nicaragua and attempted to secure the release of U.S. hostages held by Iran-backed Hezbollah in Lebanon. Mehdi Hashemi, an officer of Iran's Islamic Revolutionary Guards Corps, leaked evidence of the deal to a Lebanese newspaper in 1986. Reagan's closest aides maintain he did not fully know, and only reluctantly came to accept, the circumstances of the operation.

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Notable leakers and whistle-blowers – Tobacco industry executive Jeffrey Wigand issued a memo to his company in 1992 about his concerns regarding tobacco additives. He was fired in March 1993 and subsequently contacted by "60 Minutes" and persuaded to tell his story on CBS. He claimed that Brown & Williamson knowingly used additives that were carcinogenic and addictive and spent millions covering it up. He also testified in a landmark case in Mississippi that resulted in a $246 billion settlement from the tobacco industry. Wigand has received public recognition for his actions and continues to crusade against Big Tobacco. He was portrayed by Russell Crowe in the 1999 film "The Insider."

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Notable leakers and whistle-blowers – For 10 years, Frederic Whitehurst complained mostly in vain about practices at the FBI's world-renowned crime lab, where he worked. His efforts eventually led to a 1997 investigation that found lab agents produced inaccurate and scientifically flawed testimony in major cases, including the Oklahoma City and World Trade Center bombings. The Justice Department recommended major reforms but also criticized Whitehurst for "overstated and incendiary" allegations. He also faced disciplinary action for refusing to cooperate with an investigation into how some of his allegations were leaked to a magazine. After a yearlong paid suspension he left the bureau in 1998 with a settlement worth more than $1.16 million.

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Notable leakers and whistle-blowers – FBI whistle-blower Coleen Rowley accused the bureau of hindering efforts to investigate a suspected terrorist that could have disrupted plans for the September 11, 2001, terror attacks. In 2002 she fired off a 13-page letter to FBI Director Robert Mueller and flew to Washington to hand-deliver copies to two members of the Senate Intelligence Committee and meet with committee staffers. The letter accused the bureau of deliberately undermining requests to look into Zacarias Moussaoui, the only person convicted in the United States of playing a role in the attacks. She testified in front of Congress and the 9/11 Commission about the FBI's mishandling of information. Rowley was selected as one of Time magazine's People of the Year in 2002, along with whistle-blowers Sherron Watkins of Enron and Cynthia Cooper of WorldCom.

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Notable leakers and whistle-blowers – Sherron Watkins, a former vice president at Enron, sent an anonymous letter to founder Kenneth Lay in 2001 warning him the company had accounting irregularities. The memo eventually reached the public and she later testified before Congress about her concerns and the company's wrongdoings. More than 4,000 Enron employees lost their jobs, and many also lost their life savings, when the energy giant declared bankruptcy in 2001. Investors lost billions of dollars. An investigation in 2002 found that Enron executives reaped millions of dollars from off-the-books partnerships and violated basic rules of accounting and ethics. Many were sentenced to prison for their roles in the Enron scandal.

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Notable leakers and whistle-blowers – Cynthia Cooper and her team of auditors uncovered massive fraud at WorldCom in 2002. They found that the long-distance telephone provider had used $3.8 billion in questionable accounting entries to inflate earnings over the past five quarters. By the end of 2003, the total fraud was estimated to be $11 billion. The company filed for bankruptcy protection and five executives ended up in prison. Cooper started her own consulting firm and told her story in the book "Extraordinary Circumstances: The Journey of a Corporate Whistleblower."

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Notable leakers and whistle-blowers – In 2003, federal air marshal Robert MacLean anonymously tipped off an MSNBC reporter that because of budget concerns, the TSA was temporarily suspending missions that would require marshals to stay in hotels just days after they were briefed about a new "potential plot" to hijack U.S. airliners. The news caused an immediate uproar on Capitol Hill and the TSA retreated, withdrawing the scheduling cuts before they went into effect. MacLean was later investigated and fired for the unauthorized disclosure of "sensitive security information."

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Notable leakers and whistle-blowers – Joe Darby is the whistle-blower behind the Abu Ghraib prison abuse scandal in Iraq. He says he asked Army Reserve Spc. Charles Graner Jr. for photos from their travels so he could share them with family. Instead, he was given photos of prisoner abuse. Darby eventually alerted the U.S. military command, triggering an investigation and global outrage when the scandal came to light in 2004. Graner was sentenced to 10 years in prison for his part in the abuse. He was released in 2011 after serving 6½ years of his sentence. The military and members of Darby's own family ostracized him, calling him a traitor. Eventually he and his wife had to enter protective custody.

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Notable leakers and whistle-blowers – The New York Times reported in 2005 that in the months after the September 11, 2001, attacks, President George W. Bush authorized the U.S. National Security Agency to eavesdrop without a court warrant on people in the United States, including American citizens, suspected of communicating with al Qaeda members overseas. The Bush administration staunchly defended the controversial surveillance program. Russ Tice, an NSA insider, came forward as one of the anonymous sources used by the Times. He said he was concerned about alleged abuses and a lack of oversight. Here, President Bush participates in a conversation about the Patriot Act in Buffalo, New York, in April 2004.

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Notable leakers and whistle-blowers – Army Pfc. Bradley Manning was convicted July 30 of stealing and disseminating 750,000 pages of classified documents and videos to WikiLeaks, and the counts against him included violations of the Espionage Act. He was found guilty of 20 of the 22 charges but acquitted of the most serious charge -- aiding the enemy. Manning is set to speak in his defense when he takes the stand during the sentencing phase of his court-martial on Wednesday, August 14. He could face up to 90 years in prison if the judge imposes the maximum sentence.

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Story highlights

Frank Snepp: Intelligence leaks funneled through reporters may pose new risks for press

Snepp: Press dangerously blase as these threats to constitutional freedoms have grown

The conservative Republican Rep. Peter King of New York recently uncorked the genie that journalists fear most, by calling for a crackdown on anyone who gives air time to Edward Snowden and like-minded leakers. To most of my journalist colleagues, this seems to violate the most basic tenets of press freedom. But as I discovered from my own bout with the U.S. Supreme Court, the First Amendment can be a fickle friend for anyone who dares defy the guardians of "official secrecy."

The continued hemorrhaging of some of our most closely held intelligence could make the administration an ally of King's, particularly if Snowden keeps lobbing headline-grabbers from some hideaway abroad. Attorney General Eric Holder has already shown his colors by prosecuting more leak cases under the espionage statutes than any of his predecessors, and by making reporters' phone and e-mail records fair game in related investigations.

The WikiLeaks case bears all the hallmarks of his take-no-prisoners strategy and should be a wake-up call for anyone tempted to follow in the footsteps of Bradley Manning, the Army private on trial for allegedly downloading countless classified files to the WikiLeaks website. In building a brief against him, military prosecutors are interpreting the espionage statutes and an aiding-the-enemy charge with abandon, and have even suggested that his actions were tantamount to sharing secrets with Osama bin Laden.

Frank Snepp

The criminal complaint against Edward Snowden ups the ante even further. It targets the cherished source of two doggedly mainstream journals, The Washington Post and the Guardian, a British newspaper. And it includes an espionage charge involving some of our most highly classified secrets -- the communications intelligence Snowden allegedly stole from his former employer, the National Security Agency.

What makes all this vexing for journalists is a snake in the haystack. The communications statute cited against Snowden specifically targets anyone who "publishes" the restricted information. Both he and Manning are also saddled with a more generalized espionage charge that makes it illegal for anyone to pass "national defense" information to an unauthorized recipient, or to conspire to do so. Journalists as well as leakers can easily be fit into the starring role.

But just such an indictment could be in the works for WikiLeaks editor-in-chief Julian Assange, and if so, it would be bad news for all leak hounds. A secret grand jury began investigating Assange more than two years ago, and First Amendment guru James Goodale, who represented The New York Times in the Pentagon Papers case, has publicly speculated that Assange could wind up facing conspiracy charges modeled after the Rosen affidavit if he ever lands on American soil.

Typically, espionage cases are won or lost on issues that don't apply to Web publishers, let alone mainstream journalists. Normally what's required is clear proof of unpatriotic intent and real damage to the country. But the communications statute in the Snowden case allows for a guilty verdict if a leak is merely "prejudicial to the U.S. interest" -- a flimsy standard that could convict a journalist for simply recycling Snowden's handouts. And from the Pentagon Papers case onward, prosecutors have tried to lower the bar even further.

President Nixon tried and failed to get leaker Daniel Ellsberg and his accomplices jailed for espionage without putting their motives on trial -- the first time the spy laws had been used against anyone other than a spy -- and the Reagan administration scored an actual conviction on this basis.

A civilian analyst for the Navy had been arrested for handing classified satellite photos to a British magazine. He hadn't meant to help a foreign adversary and there was no proof of real harm to U.S. security. But, the courts trounced him anyway, making him the first U.S. official ever to go to jail on an espionage rap for merely leaking secrets to the press. (He was pardoned by President Bill Clinton.)

Throughout all this, journalists have remained dangerously blase, convinced that they could never be made to pay for their sources' sins. No reporter, after all, has ever been convicted of espionage for publishing secrets, and the Supreme Court has generally given the press a free pass to publish even nonpublic government information if obtained lawfully.

But if Assange gets convicted, that could be a game changer. Attorney Goodale warns that the spy laws could then potentially be used to punish any "conspiracy to commit journalism" when official secrets are involved.

Nor is espionage the only stick that can be used to beat the press. A theft-of-government-property charge has also been lodged against Manning and Snowden, and it wouldn't take much to stretch it to fit their "fences" in the media.

Civil law also offers a fallback, as the Supreme Court proved in its breakthrough ruling against me.

Like Snowden, I'd once been a dedicated spook, but it was Vietnam, not the NSA, that broke the spell. After experiencing the collapse of Saigon firsthand, I quit the CIA in a fit of anguish and published a memoir, "Decent Interval," about botched intelligence and the abandonment of our Vietnamese allies. Prosecutors in the Carter Justice Department hauled me in for allegedly violating CIA secrecy agreements and an invisible "trust" by publishing my book without agency approval.

They did not accuse me of revealing any secrets, classified or otherwise. No secrets, period. My offense, as they saw it, was procedural: I'd deprived the agency of the chance to sort out whether my writings might expose secrets before the damage was done.

The Supreme Court obliged them in spades. It declared that I had irrevocably damaged the country by creating the appearance of a CIA security meltdown and decreed that I be gagged for life -- required to submit to agency screeners anything I might write about what I'd learned "as a result of" my government service, whatever that means. The government was also allowed to confiscate every cent I had earned from "Decent Interval," including the equivalent of all the taxes I had already paid on those earnings. Profits from any reprints or film rights are also forfeited -- forever.

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Some journalists decried this penalizing of nonclassified disclosures in the absence of proven harm, and warned of serious damage to the First Amendment. But most people concluded that an errant spook had simply received his comeuppance -- and no sweat for anyone else.

The ruling was a ticking time bomb. Under the government's theories, it's not merely the leaker or unapproved author who breaches a "trust" but anyone along the daisy chain. Indeed, my lawyers discovered that prosecutors had considered suing my publisher, Random House, and "60 Minutes." But out of concern for pushback from the press's own First Amendment lobby, they had decided to target me alone.

It was a shrewd call. The time bomb kept ticking, and several years later it exploded. The cigarette manufacturer Brown & Williamson learned that a former employee, Jeffrey Wigand, was about to expose what he claimed was a company cover-up of the true hazards of nicotine. Invoking the Snepp ruling and other case law, the firm's lawyers threatened to sue CBS if it aired a Wigand interview, which they said would violate a nondisclosure agreement he'd signed on the job. CBS buckled and canceled his appearance.

Take warning, Edward Snowden and your Guardian and Post helpmates. All CIA and NSA employees and contractors take on nondisclosure commitments, and thus have a contagious liability that can be passed along to journalistic bed partners.

And it isn't the sensitivity of the message that can send you to the poorhouse. The creator/producer of the FX spy drama "The Americans" is an ex-CIA agent and signatory of an agency secrecy agreement, and if he doesn't submit his scripts to the CIA for vetting, FX, the actors and crew could all conceivably be dinged for this "breach of trust," even if the only CIA reference in his scripts is a piece of dialogue about luncheon specials in Langley's cafeteria.

Such are the consequences of anti-leak paranoia gone haywire.

President Obama has tried to assure us in the face of Snowden's leak-fest that Congress and the courts stand ready to safeguard all our civil liberties. But the Supreme Court accepted uncritically all government security claims in my case because of public hysteria over the Iran hostage crisis and Soviet invasion of Afghanistan. And the tremors still resonating down from 9/11 make judges and legislators today equally timid watchdogs, especially when it comes to the NSA.

No wonder Snowden and other freshly minted idealists who wind up with access to our most sensitive secrets freak out at the first glimpse of excess, even if they can't quite pinpoint any specific abuse. Confusion reigns, and leaks rain down, when hypocrites in Congress, the courts and the executive branch claim they've got our backs when they don't.

As a journalist I rue the implications of all this for my own profession. King should be reminded that punishing the messenger never stops the drip and inevitably diminishes constitutional protections for us all, even him.

But because my CIA service taught me that secrets can sometimes save lives and make bad policies better, I must extend a tentative benefit of the doubt to a constitutional law professor turned president who is struggling, without a roadmap, to balance unprecedented post-9/11 security needs and time-honored constitutional values.

Let's face it: In an era of instant threat, Web-nurtured sappers and the amplification-by-Internet of the damage from truly dangerous leaks, who's to be faulted for erring on the side of caution?

And though I share Snowden's belief in the purifying powers of transparency, I can only hope he resists the zealot's temptation to burn down the village in order to save it. That only stokes the bomb-throwers and those in government who oppose letting any light into the darker corners of our espionage empire.

Nor is self-restraint just for cowards and losers. Ellsberg, after all, held back some of the most sensitive of the Pentagon Papers, those that protected diplomatic efforts to end the Vietnam War. And my own book exposed none of the secrets I knew that had survived the fall of Saigon. Even so, my concerns got aired anyway -- and maybe, just maybe, some of my successors in the spy world learned enough from what I wrote not to repeat the mistakes that shamed us.